ABC News asks judge to toss 'pink slime' lawsuit

By KRISTI EATON | November 1, 2012 | 8:34 AM EDT

SIOUX FALLS, S.D. (AP) — Lawyers for ABC News asked a judge Wednesday to toss out a $1 billion defamation lawsuit filed by a South Dakota-based meat processor over a meat product that critics dub "pink slime," saying the news organization did not knowingly disparage the company or its product.

Beef Products Inc. sued ABC News Inc. in September, claiming the network damaged the company by misleading consumers into believing the product is unhealthy and unsafe.

The lawsuit seeks damages under South Dakota's defamation law, as well as a 1994 state law that allows businesses to sue anyone who knowingly spreads false information that a food product is unsafe. The Dakota Dunes, S.D.-based meat processor is seeking $1.2 billion in damages for roughly 200 "false and misleading and defamatory" statements about the product — officially known as lean, finely textured beef.

The lawsuit named American Broadcasting Companies Inc., ABC News Inc., ABC news anchor Diane Sawyer and ABC correspondents Jim Avila and David Kerley as defendants. It also names Gerald Zirnstein, the U.S. Department of Agriculture microbiologist who named the product "pink slime," former federal food scientist Carl Custer, and Kit Foshee, a former Beef Products Inc. quality assurance manager who was interviewed by ABC.

In the motion to dismiss filed in federal court Wednesday, lawyers for ABC News said that while the term "pink slime" may come across as unappetizing, it is not incorrect. Lean, finely textured beef is both pink and — like all ground beef — has a slimy texture, the lawyers argued.

"That term, while unflattering, does not convey false facts about the color or texture of LFTB and is precisely the kind of 'imaginative expression' and 'rhetorical hyperbole' that is constitutionally protected," a memorandum attached to the motion said.

ABC News also contends the meat processor cannot claim harm under the 1994 South Dakota food product law. That law deals only with the safety of the food product, according to the ABC News lawyers, and the reports did not question the product's safety or nutritional value.

"The ABC News reports repeatedly stated that LFTB is safe to eat," the memo with the motion said.

A lawyer for the meat processor said it will oppose the motion to dismiss.

Company officials have long insisted that the product is safe and healthy, and blamed the closure of three plants and roughly 700 layoffs on what they viewed as a smear campaign.

The lean, textured beef trimmings were the subject of many media reports earlier this year, and also have drawn comments from television chefs and food commentators. This year's social media uproar prompted Beef Products to suspend operations at plants in Amarillo, Texas; Garden City, Kan.; and Waterloo, Iowa.

Legal experts have said Beef Products faces an uphill battle because the company must prove ABC knew the stories were false or had doubts about the truth. A judge will make a decision later.